P. v. Thomas

Filed 6/11/08 P. v. Thomas CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Appellant Boley Wayne Thomas appeals from his conviction by a jury of corporal injury to his spouse (Pen. Code, 273.5, subd. (a))[1] and misdemeanor false imprisonment ( 236). He challenges his conviction on the ground that the court erred in admitting evidence of prior incidents of domestic violence. We affirm the judgment.

BACKGROUND

On November 2, 2005, Nakisha Hilliard called 911 to report that she and appellant, who was her husband, got in an altercation, and that I was hit and slammed down on the bed. She and appellant were married in 2005 and have a child. At the time of the incident, she lived in an apartment with appellant, his cousin, Lateff Henderson, and Hendersons girlfriend, Deborah Carelock.

When Officer Matthew Bloesch arrived on the scene at 9:30 in the morning, Hilliard told him that appellant tried to choke her and held her down on the bed. Hilliard also stated to Officer Bloesch that her wrists were twisted by her husband in the argument, and that when she bit appellant while trying to get free, he punched her in the face. She also told Officer Bloesch that her husband had committed two previous acts of domestic violence against her and that she wanted her husband arrested for domestic violence. While at the scene, Officer Bloesch requested by telephone that a judge issue an emergency protective order against appellant, and provided a copy of the order to Hilliard. Bloesch testified that he observed that Hilliards wrist was swollen, and she had a cut on her lip.

The Solano County District Attorney charged appellant with corporal injury to a spouse ( 273.5, subd. (a)) and false imprisonment by violence ( 236). The case proceeded to a jury trial.

During trial, the prosecution moved to admit evidence of prior incidents of domestic violence committed by appellant. The prosecution argued, and the trial court agreed, that Evidence Code section 1109 permits the admission of evidence of such prior acts for the purposes of proving propensity. The trial judge conducted a review of the proffered evidence under Evidence Code section 352, and observed that the prior incidents were recent in time, that they involved the same complaining witness, and that the evidence of prior incidents was highly probative on the propensity of [appellant] to batter [Hilliard]. The trial judge concluded that the evidence was certainly prejudicial, but not unduly prejudicial, and permitted the prior incidents to be admitted.

The trial court later instructed the jury using CALJIC No. 2.50.02, which permitted the jury, based on the evidence of prior incidents of domestic violence, to infer that [appellant] was likely to commit and did commit the crime or crimes of which he is accused. The jury was also instructed, using CALJIC No. 2.50.1, that the prosecution had only to prove the previous offenses by a preponderance of the evidence. Defense counsel did not object to these instructions and the jury asked no questions concerning them.

At trial, the prosecutor introduced testimony regarding only one of the several alleged prior incidents of domestic violence. Sergeant Robert Bunting testified that, on September 21, 2002, Nakisha Hilliard reported to him that appellant drove up on the sidewalk at her, forcing her off the sidewalk. Appellant then head-butted her and threatened to kill her. She and appellant struggled for control of their baby in some sort of tug-of-war. A co-worker of Hilliard opened the front door of a residence near her, and she sheltered inside. Appellant continued to knock on the door and yell for a time, then left. At the time he took this statement, Sergeant Bunting noticed a slight red mark on the side of her . . . head and was told by Hilliard that she had received the injury when she was slapped by the appellant. She also told Sergeant Bunting that appellant had previously threatened to kill her if she made a police report.

At trial, Hilliard disavowed her prior statements and testified that appellant had not struck her and did not hold her down on November 2, 2005. She testified that she was simply angry at him and wanted him to leave. She testified that she suffered from carpal tunnel in [her] wrist and explained that this condition had caused the swelling previously observed by the police officer. She admitted that she had earlier stated, at the preliminary hearing in October 2006, that appellant had been holding her wrists to prevent her from calling police.

Although Hilliard had stated to the police that she had a cut lip on November 2, 2005, she testified during the trial that she did not have a cut lip on that date. She stated she did not recall saying at the preliminary hearing that she had told officers that she had a cut lip and that at the time of trial she did not recall having the cut at all. She had also told police on the day of the incident that appellant had been arrested twice before for domestic violence, but at trial she claimed she had been lying then out of anger. Hilliard also testified that she and appellant had only struggled over the phone. Her earlier statement was that the phone hit her in the face and caused the cut lip, but at trial she said she could not remember exactly what had happened.

Hilliard testified at trial that she and appellant had not seen each other or communicated (other than by intermediary) prior to the trial, that she was not financially dependent on appellant for child support, did not hope to reconcile with him, and had no reason to lie for him.

Appellants cousin, Henderson, and his girlfriend were both present in the apartment on November 2, 2005, but left with appellant before the police arrived. Henderson testified on behalf of the defense at trial, saying that he saw the appellant and Hilliard tussling over the phone, but that appellant neither choked nor struck Hilliard. Hendersons girlfriend, Carelock, stated that both she and Henderson were asleep until they were awakened by shouting; and that she never went to see what was going on, but sent her boyfriend instead. She testified, All I heard was, BJ, why did you hit me with the phone?

On February 9, 2007, the jury convicted appellant of felony corporal injury to a spouse, and the misdemeanor offense of false imprisonment. On May 22, 2007, the trial court sentenced appellant to two years for the felony, and to a one-year concurrent term for the misdemeanor.

Appellant filed this timely appeal on May 30, 2007.

DISCUSSION

Appellant contends that the instructions given to the jury, specifically CALJIC No. 2.50.02, unreasonably predisposed the jury to give too much weight to a previous incident of domestic violence, and that this predisposition resulted in a denial of appellants due process right to a proper jury verdict. Respondent counters this argument by asserting that the claim of error has been forfeited because appellant failed to raise any objection to the instruction in the trial court and, that even if the issue has not been waived, CALJIC No. 2.50.02 presents no constitutional error on these facts.

No Forfeiture of the Claim for Failure to Object

Appellant failed to request any modification to CALJIC No. 2.50.02 either at the time it was proposed or when it was given by the trial court. Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. (People v. Andrews (1989) 49 Cal.3d 200, 218; see also People v. Campos (2007) 156 Cal.App.4th 1228, 1236.) However, we may also review any instruction given . . . even though no objection was made . . . if the substantial rights of the [appellant] were affected thereby. ( 1259.)

Appellant argues that CALJIC 2.50.02 allowed the jury to find the ultimate fact of whether he committed the crime. Thus, the essential question is: did the instruction unconstitutionally sway the jury to find the elements of the crime due to appellants propensity toward domestic violence, regardless of the strength or weakness of the other evidence? (People v. James (2000) 81 Cal.App.4th 1343, 1354.) Appellants argument is not that CALJIC No. 2.50.02, as given in conjunction with CALJIC 2.50.1, and unmodified, was too general or incomplete, but rather goes to whether the standard instruction led the jury to unconstitutionally believe that one or more elements of the crime could be proven by a lower standard than beyond a reasonable doubt. (People v.Andrews, supra, 49 Cal.3d at p. 218; see also People v. Guerra (2006) 37 Cal.4th 1067, 1135; People v. Hillhouse (2002) 27 Cal.4th 469, 503 [no objection required for appellate review because instructions involving an element of the crime affect the substantial rights of appellant].) Accordingly, despite the failure of appellant to raise the issue in the trial court, we will consider the merits of appellants contention that the standard version of CALJIC No. 2.50.02 is essentially unconstitutional because it makes it likely that a jury will mistakenly apply the wrong standard of proof.

CALJIC No. 2.50.02 is Constitutional

In an earlier opinion a different panel of this division concluded that sections 1108 and 1109 (which permit evidence of prior sexual offenses and prior acts of domestic violence, respectively) can properly be read together as complementary portions of the same statutory scheme. (People v. Brown (2000) 77 Cal.App.4th 1324, 1333 (Brown).) Our opinion in Brown held that [t]he specific retention of the power to exclude evidence under section 352, found in both sections 1108 and 1009, provides a realistic safeguard that ensures that the presumption of innocence and other characteristics of due process are not weakened by an unfair use of evidence of past acts.  (Brown, at p. 1334.) Brown followed an earlier ruling by our Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903, 917, which held that the trial courts discretion to exclude propensity evidence under section 352 saves section 1108 from [appellants] due process challenge. We concluded in Brown that the Supreme Courts reasoning was fully applicable to section 1109 as well (Brown, at p. 1334),[2] and we now conclude that it also controls regarding the propensity evidence in this case.

The Supreme Court held in People v. Reliford (2003) 29 Cal.4th 1007 (Reliford) that CALJIC No. 2.50.01 (the sex offense counterpart to CALJIC No. 2.50.02, which also describes the use of propensity evidence) did not violate the Constitution. The appellants argument in Reliford was the same one proposed here. In that case, the appellant argued that the instruction erroneously allowed the jury to infer evidence of guilt from prior acts and that the instruction was likely to mislead the jury as to the required burden of proof. (Reliford, at p. 1012) There is no pertinent difference between the arguments asserted as to these instructions for purposes of the issue presented here.

The Supreme Court concluded that such inferences of propensity may be permitted after the enactment of section 1108 (and, by logical extension, section 1109), and that trial courts should not simply exclude such propensity evidence, out-of-hand, as unduly prejudicial, but must instead engage in a careful weighing process under Evidence Code section 352. (Reliford, at pp. 1012-1013.) Once section 352 has been properly applied, the part of the instruction that permits jurors to infer that the defendant was likely to commit and did commit the charged offense, is a legitimate inference. (Id. at p. 1013.)

As to the second issue, the Supreme Court said that, when all the jury instructions are viewed as a whole, the instructions could not have been interpreted to authorize a guilty verdict based solely on proof of uncharged conduct. (Reliford, supra, 29 Cal.4th at p. 1013.) This is partly due to the instruction itself saying that finding that the defendant committed the prior offense is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. (Ibid., CALJIC Nos. 2.50.02, 2.50.1) Other standard instructions, given here as in Reliford, also prevented the jury from mistaking the proper burden of proof: The jury was instructed to view the instructions as a whole (CALJIC No. 1.01), the jury was instructed that a guilty verdict requires a union or joint operation of act or conduct and [general criminal] intent (CALJIC No. 3.30, we again quote Reliford, at p. 1013), and the instructions charged the jury with finding proof beyond a reasonable doubt for each element of the charged offense. (CALJIC Nos. 2.90, 9.35, 9.60, 16.135.) We conclude, as did the opinion in Reliford, that [n]o reasonable juror would believe those requirements could be satisfied solely by proof of uncharged offenses. (Reliford, at pp. 1013-1014.)

The propensity evidence was properly weighed for its probative value under Evidence Code section 352 before being admitted. And the instructions given in this case eliminated any reasonable doubt that the jury might mistake their charge by informing the jurors that these previous acts were merely one item to consider, that the evidence of any prior act was not sufficient by itself to meet the burden of proof, and that the evidence as a whole must be considered in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. (Reliford, supra, 29 Cal.4th at p. 1015.) We agreed with this reasoning and are bound by it in any event. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Accordingly, we conclude that there was no instructional error in this case.

DISPOSITION

The trial courts judgment is affirmed.

_________________________

Lambden, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Richman, J.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] As we noted in Brown, supra, 77 Cal.App.4th at page 1334, footnote 7, the Third District reached the same conclusion in People v. Johnson (2000) 77 Cal.App.4th 410.